Backpage Says SAVE Act |Is Unconstitutional

(CN) - Classifieds website Backpage.com says a federal law outlawing sex trafficking ads unfairly targets ad publishers for misuse of their services and has a chilling effect on free speech.

The website sued U.S. Attorney General Loretta Lynch in Federal Court on Friday, claiming that the Stop Advertising Victims of Exploitation (SAVE) Act is unconstitutional.

In May, the law added the term "advertises" as one of the predicate acts for criminal sex trafficking, punishable by prison sentences of 10 years to life, according to the lawsuit.

Backpage, owned by Village Voice Media, is the second largest online classified ad service in the United States after Craigslist.

It claims the SAVE Act may impose criminal penalties on users and Backpage itself for the exercise of free speech, and advocates against "whack-a-mole censorship," which it argues is not a solution to human trafficking or child exploitation.

"Statements of Congressional sponsors and others in support of the SAVE Act and prior bills that led to the Act emphasized their intent to target the classified advertising website Backpage.com," the complaint states. "Members of Congress and others have assailed Backpage.com for many years, despite the website's extensive efforts to prevent, screen and block improper ads from users."

States have attempted to enact laws or use other forms of coercion to block adult advertisements on the website, but all attempts were struck down as unconstitutional by federal courts.

Just earlier this month, the Seventh Circuit ruled that Chicago's sheriff made victims of Visa and Mastercard by coercing them to stop doing business with Backpage.

"The SAVE Act does not define 'advertises' or 'advertising.' By any customary definition, 'advertisers' are the third parties who place advertisements, not the operators of websites or newspapers where the ads appear," the lawsuit says. "Yet the SAVE Act leaves it unclear whether websites and other publishers and intermediaries themselves are regarded as 'advertisers.'"

This ambiguity is heightened by the clear intent of legislators to impose criminal liability on Backpage.com, according to the complaint.

"If the SAVE Act were interpreted to permit criminal liability if a website receives an allegation that a post concerns sex trafficking, this would create a notice-and-takedown regime that would impermissibly chill speech. Contrary to statements of some of the SAVE Act's Congressional supporters, criminal liability cannot constitutionally be imposed on a website merely for providing a forum for speech that some individuals misuse for sex trafficking," Backpage claims in its lawsuit.

Given the enormous number of posts on the website each day, it would be impossible to comb through every post to guarantee nothing is illegal, Backpage argues. In addition, any action to take down an ad based on the possibility it might prompt illegal conduct may be unconstitutional as a "heckler's veto."

"The SAVE Act fails to give websites, publishers and others a reasonable opportunity to know what conduct is prohibited and what is permitted. With all its vagaries, the Act could allow ad hoc and subjective interpretations by prosecutors with attendant dangers of arbitrary and discriminatory application," the lawsuit states. "And, given the severe penalties under the Act - up to life imprisonment - the risks and likely speech-chilling effect of the law is also severe."

The website seeks a court declaration that the SAVE Act is unconstitutional. It is represented by Robert Corn-Revere of Davis Wright Tremaine LLP in Washington D.C.

The American Civil Liberties Union spoke out against the SAVE Act in May 2014 when it was just a bill, saying it "won't just permit an anti-Backpage crusade," but will also apply to other websites like Tinder, Grindr, OkCupid, Plenty of Fish, Twitter, Facebook, Tumblr and Craigslist.

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